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MVB Senate speech on imprisonment for debt bill, 17 January 1823

imprisonment for debt.

The following is the substance of his speech in the Senate of the United States in favor of the bill for abolishing Imprisonment for Debt:

"He said that his preference for the bill was founded on an entire conviction that whilst it secured to the creditor means for the collection of his debt of far greater efficacy than those now allowed by law, it would, in all the cases which are subject to its operation, effectually remove that foul stain upon our jurisprudence—the power of a creditor to deprive his debtor of his liberty, on account of his inability to pay the debt he owes—a power which confounds the distinction between virtue and vice, and which, contrary to the fitness of things, awards the same measure of punishment for misfortune as for fraud, but in its practical operation inflicts that punishment upon the unfortunate only, whilst the really guilty laugh at its impotent and unavailing provisions.

"Mr. Van Buren would first consider the effect of the bill upon the ability of the creditor to collect his debt. On this point it is to be observed that the debt can only be paid by property. To reach that, then, is the only object. Beyond that it is conceded by all that imprisonment is not only useless, but indefensible.

"By the existing law, bail is allowed on mesne process, and jail limits on an execution against the body. Those who have the property you are in pursuit of, will get bail for both these objects. This we know. Now what is the character of such imprisonment, and what are its effects? In this respect, the State laws govern. In their Legislatures the same disposition has been manifested, which is every where evinced when the subject is acted upon, that is to say, an entire willingness to surrender the substance, accompanied by a mysterious adherence to the form. The jail limits are in some places parts of the town or city where the jail is situated, in others the whole town or city, and in many cases, the whole county. What can the debtor do who has property to pay his debts, but is destitute of the inclination and the honesty to apply it? He can take a house within the limits, partake of the domestic comforts of his family, and live in such style as his inclination suggests, and his means allow of.

"On this point other Senators will speak from their own observation. According to his experience and observation, Mr. Van Buren thought that, in the great mass of cases, the existing remedy was wholly inefficacious to wrest the property of an unwilling debtor from his grasp. Let us now look to the effect of the substitute proposed. What is that substitute? It is the reverse of the present system. It makes imprisonment what it should be—a harsh means to secure a justifiable end. If the debtor contemplates a fraud upon his creditor—if he intends to betray the trust reposed in him, by withdrawing his person from the process necessary to arrive at his property, he may, on the oath of the creditor, be arrested and subjected to close custody, unless he gives bail that he will be forthcoming. If a debtor has practised a fraud upon his creditor, by concealing or transferring his property, to evade the payment of his debts, or even by so investing it as to exempt it from execution, the creditor, on an affidavit of his suspicion only, may arrest him—may subject the fact to judicial examination, and hold him to bail for his appearance, to abide the result of such examination. He may, by the amendment of the gentleman from Delaware, examine the debtor on oath, and confront him with his trustees and confederates; and if the fact is found against him by a jury of his country, his condition is changed, and from the mere delinquency of a debtor, his situation becomes assimilated, in a great degree, to that of the felon; and the treatment he thereafter receives is, as it ought to be, of a similar character.

"Instead of residing in the bosom of his family, rioting on the fruits of his fraud, whilst his more honest creditor and his family are deprived of their bread by their misplaced confidence, he will be stripped of these indulgences—he will be torn from the parental board which he contaminates, and from a society which he corrupts, and placed where he ought to be, in the walls of a prison, under the restraints of grates and bars. The character of fair dealing between man and man is promoted, when the guilty are punished. Mr. Van Buren appealed to every man of reflection to tell him whether he was not satisfied that means like these will go further to secure the real interests of the creditor, than the pitiful and intricate machinery of the present system.

"In addition to this is the right given by the proposed bill to imprison, on evidence of the concealment of the fraudulent debtor. This feature is desirable, not only because it secures the punishment of the guilty, but because it makes the distinction between fraud and misfortune the great point which has always been desired by the friends of humanity. It is not the privations of the fraudulent which have so constantly excited the disciples of philanthropy. It never has been any where disputed that the fraudulent debtor deserved all, and more than all, the stipulated rigor of the present law. But it has been because what he deserved, had been heaped upon the head of the innocent and the unfortunate, that so much sympathy had been excited. That distinction, if the bill passes, will be made, so far as the courts of the United States are concerned. Those high grades of fraud which add to the breach of moral obligation, the violation of public trust, (being the cases of public officers embezzling public moneys,) those of a second grade, which consists in the violation of trusts reposed by those who have gone to their long account, and which are practised to the injury of the widow and orphan, (the case of embezzlement by executors, administrators, and guardians,) and the simple frauds practised by man upon his fellow man, when dealing at arms' length, all, when duly ascertained and proved, will be punished by the provisions of this bill as they deserve. In such imprisonment, all will acquiesce—by it the claims of justice will be satisfied, and no moral feeling violated. On a man imprisoned for such cause, the community would look with feelings of indifference. They might pity the depravity, and despise the meanness of spirit which had brought him to that condition, but real sympathy would, in such cases, be strangers to their bosoms. But imprisonment of the unfortunate debtor, whether it consists of many or a few, ought every where to be regarded as an outrage upon the moral sense of a civilized and Christian community. Such are the provisions of the bill on the table, and such the additional remedies given to the creditor.

"Now what are the rights of the creditor surrendered? They consist—

"1st. In the privilege of arbitrary arrest, or mesne process,

"2d. In arbitrary imprisonment on execution.

"As to the first: By the law as it will stand if the bill passes, the creditor, on his own affidavit of the existence of the debt, and apprehension of departure, may arrest. By the law as it now stands, in most of the States, the creditor may, without proof of the debt, hold the person whom he chooses to consider his debtor to bail in any amount he pleases, and imprison him, at least for a season, unless he obtains bail. Is this right? Contrast it with proceedings for crime. No man can be arrested for any crime, not even for the lowest, without previous affidavit of crime committed, and suspicion at least as to the author; and after arrest, he cannot be committed without previous and full examination of the circumstances upon which that suspicion rests. But in a civil case, a man may be arrested and committed for trial, at the will and pleasure of his fellow-citizens. Is there not a repugnance in these provisions as revolting to our feelings as it is destructive of sound policy? Will any man believe that if any Legislature of any country were to sit down to form a system combining both subjects, one involving such discrepancy would be adopted? They surely would not. Mr. Van Buren put the question to honorable Senators, if the whole matter was before you, and you were now for the first time to act upon it, would you do so? Every honorable member will at once answer that he would not, and still we are content to acquiesce in what is, because it has been, and to continue the toleration of abuses plain and manifest as the meridian sun, rather than give ourselves the trouble to break the fetters by which sturdy habit has bound us.

"As to the second. The right of arbitrary imprisonment on the execution, without fraud or concealment proved. Upon whom does it fall? Mr. Van Buren had already shown that those who have property will get bail. It is therefore the poor and friendless only who feel its rigor. Its inhumanity and its injustice as it bears upon them, are too manifest to need elucidation. All acquiesce, or, at least, seem to do so, in this view of the case. In a word, it is punishment without guilt, which no man will approve. It is punishment without expiation—punishment at which the best feelings of our nature revolt. In criminal cases, by the lapse of time, the measure of personal suffering becomes full, and the claims of public justice are satisfied. Not so with the imprisoned debtor. The sun rises and the sun sets; but his condition remains the same; and if death sets his spirit free, the creditor not only succeeds to his dead body, but to whatever estate accident may have devolved upon him. Imprisonment is not only of such character and consequence to the unfortunate debtor himself, but its injurious consequences, without benefiting the creditor, embrace the still more innocent family of the debtor, by depriving them of all means of support. More and worse than this—operate as a public injury, by preparing its subject for the commission of crime, by destroying his pride of character, and by corrupting his principles; so that when he is again let loose upon society, by the humanity of the insolvent laws, or the relenting disposition of the creditor, he comes forth a confirmed misanthropist, if not a ready depredator on the property of others. Viewed therefore in whatever light it may be, the imprisonment of the unfortunate debtor is a matter of unmixed mischief, which ought no where to be tolerated, which is no where justified in terms, though it is supported in substance.

"Mr. Van Buren said he would now consider the character and effect of the imprisonment now allowed. What are its advantages? It is justified as a means to compel the debtor to disgorge concealed property. Mr. Van Buren had already shown that as to him who has property to disgorge, and can therefore secure the privilege of the limits, the measure is wholly inoperative.

"Upon those who have no property, it is not only wholly ineffectual, but very oppressive. It is punishing first and inquiring afterwards. It is inflicting severe chastisement for a supposed injury to an individual, constituting the injured party both judge and jury. It partakes of the character of the rack, putting its victim to the torture, without knowing whether he has any thing to confess or not. It is said that to repeal the old law, would deprive the creditor of one of his securities. As the bill now stands, with its operation confined to contracts which are made after the fourth of July next, it cannot be said to deprive the creditor of any security which he possessed, at the time of entering into the contract. It can therefore only be objectionable, if objectionable at all, because it will prevent the taking of future securities of that character. Mr. Van Buren said, that with him the greatest merit of the bill was that it produces that effect. He agreed fully with a distinguished writer, who says, that he who trusts, with a design to sue, is criminal by the act. What is it? Strip the transaction of the drapery of courts, officers, and forms of proceeding, which are but the instruments of the law, to give effect to the contract as made between the parties, and suppose the contract to express all that by the law, as it stands, it implies. It would then provide that if the debtor failed on the appointed day to pay the debt he had contracted, it should be lawful for the creditor to tear him from his family, and to restrain him of his liberty, by confining him within prison walls, whether his inability to pay arose from misfortune or fault, and whilst so confined to leave him to be sustained by his own resources, or if he had none by the charity of his fellow-citizens, until he should be discharged by their humanity, or the humanity of the laws of his country. Suppose a contract thus actually written out—what would a Christian community say to such a bargain? In what portion of this country would the man who had dared to enter into it, venture to expose his person to the hisses of his fellow-citizens? And still this is but the unvarnished statement of a transaction which, when disguised by the intervention of courts, and consecrated by immemorial usage, receives the vigorous support of some of the best and wisest men that our country produces. Sir, said he, I am for breaking up contracts of this character. I would dissolve this alliance which is supposed to exist between the counting-house and the jail. I would compel men to conduct their dealings on higher and better principles, and to look to better grounds of reliance than to bailiffs and turnkeys. I would have them depend upon the character or property of those with whom they deal; and rest assured the best results would flow from the establishment of such a system. It cannot be necessary to state, that in all dealings upon credit, the terms of the contract will be greatly controlled by the nature of the security. What must be the terms of those bargains which mainly depend upon a security of this description? Can they be otherwise than the operations of avarice upon helpless poverty, or of cupidity and cunning upon improvident and dangerous speculations? They must, in the nature of things, be of this character. If this system be abolished, those who desire credit will pursue a course to obtain it. They will seek to inspire confidence by industry, probity, and punctuality. By this course they will be sure to obtain it, and the credit they thus obtain will elevate their character, increase their happiness, and benefit the community.

"It is further objected that the alteration of the system will impair credit. Mr. Van Buren had already stated what species of credit it must necessarily be, which would be thus impaired, and how little objection exists against putting a check upon such credit. But what reason is there to believe that this apprehended effect upon credit would be produced. In this, as in all other cases, speculation must yield to fact, or you are led into error.

"The suggestions of experience must be listened to. How stands the fact? What is the condition of the credit most prevalent in the country; that on which nine-tenths of the every day business of the country rests? It is bank paper. And what security does the holder of a bank note ask or receive, when he takes it? The right to imprison the drawer? No! he never thinks of it. He will sell his estate, and take in payment the notes of associated individuals, without its ever occurring to him that the right to imprison the drawer is not secured to him; but if he sells a horse, or a cow, and takes the note of a single individual, he deems it a matter of vital importance, that his lien upon the body of debtors should be protected by the strongest statutes. When you pay an annual premium to secure your houses against the flames, or your vessels against winds and waves, do you think of the right to imprison? No. But when we dole out a miserable pittance of their cargo, this hankering after corporeal security possesses us. Such are the miserable contradictions into which we are led by the blind force of habit. But suppose a check is put to credit. Is it certain that such a result would be an evil? Mr. Van Buren thought not. He thought, on the contrary, that much of the distress which has prevailed, and in some places continues to prevail, arose from the unrestrained credit which has been given in this country. It has led to extravagances in every form. In the manner of living, in buildings, in equipages, in dress and ornaments, in every thing, you have seen its pernicious influence. The frugal habits of our ancestors who dealt in the property they actually had, had given way to the prodigality of those who deal in the ideal capital which credit has given them, and the consequence has been that we have lost that independence our ancestors possessed. Witout enlarging upon the subject, he was satisfied, that a check to credit, so far from being objectionable, was desirable. We have seen that we cannot check the improvidence of the debtor; let us therefore endeavor to restrain the cupidity of the creditor. In every point of view, therefore, in which he had been able to consider the subject, Mr. Van Buren was decidedly in favor of the bill; and he trusted it would receive the approbation of Congress and of the country." 

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Source: Washington (DC) Globe
Collection: N/A
Series: Series 4 (3 December 1821-31 December 1824)